Jordan v. Federal Bureau ( 2006 )

UNITED STATES CO URT O F APPEALS
TENTH CIRCUIT
__________________________
M A RK JO RD A N ,
Plaintiff-Appellant,
v. No. 04-1104
(D . Colo.)
FED ERAL BUREAU OF PRISONS; (D.Ct. No. 99-F-2386 (M JW ))
R .E. H O LT; LT. FELS; M . PU GH,
W arden, U SP-A D X ; J. G U N JA ; A.
C HILD S; R OB ER T A . H O O D ,
Defendants-Appellees.
____________________________
OR DER
Before HA RTZ, Circuit Judge, and M cW ILLIAM S and BROR BY, Senior
Circuit Judges.
This matter is before the court on Appellant’s petition for panel rehearing
of the order and judgment issued July 25, 2006. W e deny the rehearing petition
in part on grounds M r. Jordan has not shown a “significant issue has been
overlooked or misconstrued” by this court which would change our resolution of
his appeal. See United States v. Wiles, 106 F.3d 1516, 1517 (10th Cir. 1997)
(quoting 10th Cir. R. 40.1). W e grant the petition in part for the purpose of
providing factual corrections which have no bearing on the disposition of M r.
Jordan’s appeal, including eliminating reference to the length of M r. Jordan's
1994 sentences; deleting footnote 1; and adding a sentence to explain that the
razor blade incident was later expunged from his disciplinary prison record.
Accordingly, the Order and Judgment issued July 25, 2006, is vacated and
replaced with the amended Order and Judgment attached to this Order.
Entered by the C ourt:
W ade Brorby
United States Circuit Judge
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 18, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
M A RK JO RD A N ,
Plaintiff-Appellant,
v. No. 04-1104
(D . Colo.)
FED ERAL BUREAU OF PRISONS; (D.Ct. No. 99-F-2386 (M JW ))
R .E. H O LT; LT. FELS; M . PU GH,
W arden, U SP-A D X ; J. G U N JA ; A.
C HILD S; R OB ER T A . H O O D ,
Defendants-Appellees.
____________________________
OR D ER AND JUDGM ENT *
Before HA RTZ, Circuit Judge, and M cW ILLIAM S and BROR BY, Senior
Circuit Judges.
Appellant M ark Jordan appeals the district court’s grant of summary
judgment in favor of the Appellees, officials of the Federal Bureau of Prisons, on
his Bivens 1 action alleging the conditions and duration of his five-year
administrative detention, together with the federal prison regulations in 28 C.F.R.
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
1
See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971).
§ 541.22, created a liberty interest triggering procedural due process protections
which the prison officials violated. Exercising our jurisdiction under 28 U.S.C.
§ 1291, we affirm.
I. Disputed and Undisputed Factual Background
W e begin by reviewing the considerable record of evidence on which the
district court granted summary judgment, in order to ascertain, under the
applicable standard of review, whether disputed material facts exist prohibiting
summary judgment resolution. As a preliminary consideration, we note that while
we must view the evidence in the light most favorable to M r. Jordan as the
nonmoving party, he offers almost no evidence to counter the overwhelming
evidence offered by prison officials rebutting the allegations in his verified
complaint, or to otherwise respond to the particularized facts in support of their
motion for summary judgment.
To begin, during the period in question, it is undisputed M r. Jordan was
serving a sentence for one count of armed bank robbery and a sentence for
another count of armed bank robbery and possession of a firearm in relation to a
crime of violence. From June 1999 to June 4, 2004, M r. Jordan was imprisoned
at the Federal Correctional Complex in Florence, Colorado, operated by the
United States Bureau of Prisons. Prior to his confinement at Florence, M r. Jordan
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was confined at federal prisons in Allenwood, Pennsylvania, and Atlanta,
Georgia, where he was classified as a high security risk based on his significant
history of violent and disruptive behavior stemming from numerous infractions,
including threatening bodily harm.
A. Dry Cell Placement
On June 3, 1999, while at the Florence prison, officials issued an order
placing M r. Jordan in a dry cell after he was accused that day of murdering
another inmate w ith an eleven-inch sharpened piece of metal w hile in the main
recreation yard. See Jordan v. Hood, 117 Fed. Appx. 31, 32 (10th Cir. Oct. 29,
2004) (unpublished op.); United States v. Jordan, 2005 W L 513501, at *1 (D.
Colo. M arch 3, 2005) (unpublished op.). In his verified complaint, M r. Jordan
alleged he remained in the dry cell for ten days, from June 3 to June 13, 1999,
and received neither notice of the reasons for his dry cell placement nor a hearing
on his confinement. Prison officials contradicted the duration of M r. Jordan’s
confinement by declaration and submission of documentary evidence showing M r.
Jordan remained in the dry cell less than a day, from approximately 3:00 p.m.
until 7:38 p.m., at which time officials issued an order transferring him to
administrative detention pending an investigation of his assault on another person
and for security reasons. Prison records show M r. Jordan was transferred that
evening to Cell A-106, which is not a dry or holding cell, but a cell in the special
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housing unit for administrative detentions; these records also show on each of his
ten days in Cell A-106 the times when he ate, exercised, showered, and received
physician's assistant visits. In an attempt to rebut the daily prison records
showing his ten-day placement in Cell A-106, M r. Jordan submitted declarations
of two inmates who stated M r. Jordan was placed in Cell A-106 on the evening of
June 3, 1999, but prison staff mysteriously removed him in the middle of the
night and took him somewhere else. He also submitted an inmate’s declaration
stating that from June 8 to June 13, 1999, he and M r. Jordan were both housed in
dry cells.
W ith respect to M r. Jordan’s claim he received no notice of the reason for
his placement in the cell, prison records establish he received two orders
concerning his initial confinement. On June 3, at 3:45 p.m., while in the dry cell,
he received a copy of the order advising him of his confinement pending an
investigation into the assault, and then again, at 9:00 p.m., while in Cell A-106,
he received a copy of an order stating he was being placed in administrative
detention for assaulting another person and his assault raised concerns of further
serious injuries, life threatening circumstances, and security issues for the
institution. In addition, on June 4, 1999, one day after the murder incident, M r.
Jordan w as advised of the crime he allegedly committed and his M iranda rights,
after which he refused to sign a M iranda waiver and instead invoked his right
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against self-incrimination. As to his initial placement in the cell, prison officials
explained the prison regulations in 28 C.F.R. § 541.22(a)(2) and (a)(3) permitted
them to place an inmate w ho is under investigation for a criminal act in
administrative detention and to refer such investigations, as they did here, to the
Federal Bureau of Investigation.
Finally, concerning the conditions of the dry cell, M r. Jordan claims he did
not have a mattress or other furniture and slept on a blanket; the cell was
unventilated and smeared with human feces, vomit, and other human waste; he
received only sixteen ounces of iced water each weekday and thirty-two ounces of
milk each weekend day; he was given merely a jar for urine and a plastic
container for waste; and officials denied him socks and shoes, reading material,
toiletries, and other basic hygiene products, other than tissue on request. In
response, the prison officials avowed the holding cells are routinely cleaned when
an inmate leaves; M r. Jordan’s cell was personally inspected prior to his
placement in it; and if a cell contained feces or vomit officials would not have
placed him in the cell until someone cleaned it. They also explained that even
though holding cells do not have a toilet or sink, they are routinely furnished with
a mattress, sheets, and blanket; and M r. Jordan was given a bed pan and container
for bodily excrement. W ith respect to Cell A-106, where he was transferred later
that day, the same officials explained it included a sink, toilet, and shower, and
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records show M r. Jordan received daily visits from a physician’s assistant, one
hour of exercise each day, except for one day during a prison lock-down, and at
least tw o showers during his stay.
B. Federal Correctional Institution/Special Housing Unit Confinement
On June 13, 1999, M r. Jordan was transferred to administrative segregation
at the Florence Federal Correctional Institution Special Housing Unit as a
holdover inmate based on spacial concerns, the investigation of his role in the
murder, and his pending reclassification on security grounds. He remained at this
facility in holdover status for almost nine months, until M arch 3, 2000.
W ith respect to the conditions of his confinement, M r. Jordan complained
they consisted of restraints and restrictions more severe than others in
administrative or disciplinary confinement, explaining he received sporadic
indoor exercise “less than once per week,” and prison officials severely restricted
his ability to correspond, possess stationery, access reading materials from the
library cart, and obtain personal property. In addition, M r. Jordan claimed that in
September 1999, Lieutenant Fels informed him they had completed the
investigation of him and if he signed a w aiver of his M iranda rights and
confessed to the murder or told him who committed the offense, they would
transfer him out of the special housing unit. Because he refused, claiming his
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innocence and inability to identify the offender, M r. Jordan alleged officials left
him to languish in administrative detention.
Prison officials countered M r. Jordan remained in administrative detention
in holdover status due to the pending investigation, the serious threat he posed to
the safety and lives of others, and spacial considerations. 2 As to the conditions of
his confinement, they pointed out he would have been afforded the same reading
materials as other administrative inmates and, as indicated by prison records, he
refused regularly-offered exercise periods. In addition, they explained inmates in
the special housing unit are generally given the same privileges as inmates in the
general population, provided such privileges are consistent with the security
needs of the unit, and in M r. Jordan’s case he received the same privileges as the
other inmates, except he was not permitted group recreation because of his
security level. They also pointed out that during his almost nine-month
administrative detention at the special housing unit he committed several
infractions, including interfering with security devices, refusing to obey an order,
destroying government property, and possessing a dangerous weapon and
2
As to his placement ten days later in the special housing unit, prison officials explained
an investigation is not considered closed until the inmate is criminally charged and/or the
Federal Bureau of Investigation releases its primary jurisdiction allowing the Bureau of Prisons
to complete its investigation and administratively discipline an inmate for homicide, and they
could not determine Mr. Jordan’s classification for permanent placement in a facility
commensurate with his security needs until the criminal matter was resolved, which resulted in
his holdover status in administrative detention.
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threatening bodily harm. As one example, M r. Jordan removed a stainless steel
shower panel in his cell and used it to break the glass of his cell window and
threaten staff. As a result of being found guilty of these offenses, he received a
total of seventy-five days of disciplinary segregation as a sanction, during which
time he lost commissary and property privileges.
C. Administrative M aximum Penitentiary Confinement
On M arch 3, 2000, M r. Jordan received an administrative detention order
for transfer to the Florence Administrative M aximum Penitentiary, which
reiterated his placement in administrative detention stemmed from his
reclassification pending the murder investigation and his possible prosecution; he
remained a holdover inmate in that facility from M arch 4, 2000, until June 4,
2004.
In his verified complaint, M r. Jordan stated officials w ere holding him
indefinitely in prolonged solitary isolation without procedural due process
because he received no hearing and no indication an investigation was pending for
the purpose of keeping him in segregated confinement. He also alleged that,
unlike him, other inmates under investigation remained in the general prison
population. As to the conditions or restrictions associated with his confinement,
M r. Jordan alleged he lacked access to a radio or television at different times, his
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exercise was reduced to two and one-half hours per week, and the conditions of
his confinement were similar to those in disciplinary segregation or at the
Florence control unit. However, he admitted he enjoyed access to educational and
recreational programs, medical and psychological services, leisure and legal
library services, and frequent interactions with staff.
In response, prison officials pointed out all inmates in administrative
maximum confinement are provided access to the following privileges: the
commissary, institution programming, mental health and medical services, leisure
and law libraries, five hours a week recreation, a hobby craft, telephone,
correspondence, and visitors. They also explained these inmates enjoy
opportunities to gain employment as a unit orderly; access to legal assistance
from another inmate; and to interact with a case manager, unit counselor, unit
manager, custody staff, and department heads. They avowed that while inmates
in the facility are in single cells and cannot move about as in an open population
facility, they are offered the same programs and afforded the same privileges as
inmates in the general population, except that administrative detention inmates:
1) are allowed only one social call per month, while general population inmates
are allowed two per month; and 2) do not receive the twelve hours recreation time
general population inmates on group recreation status receive, but receive the
same five hours of individual recreation that general population inmates on single
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recreation status receive. Prison officials by declaration stated M r. Jordan was
given the same privileges afforded other inmates at the administrative maximum
confinement facility, which included the privileges and exceptions just described.
Prison officials also offered evidence explaining M r. Jordan lost his
privileges to a television as a result of disciplinary sanctions imposed for
infractions completely independent from his administrative detention for
investigation of the murder, including the loss of television and commissary
privileges because staff found a razor blade between pages of a book in his cell
while he w as housed at the administrative maximum prison; while the record
shows this incident was eventually expunged from his disciplinary prison record,
officials pointed out it caused the lost privileges of which he now complains and
furthered their security concerns. They provided further record evidence M r.
Jordan received an opportunity for five hours of exercise per week, which he
frequently refused. Finally, they contradicted his general allegation he
experienced restrictions similar to inmates in disciplinary segregation or the
control unit. 3
3
Specifically, they explained inmates in disciplinary segregation do not have a television
set or radio, cannot participate in hobby craft or possess certain personal property, do not have
commissary privileges, and may only receive one social telephone call every ninety days; and
that inmates in the control unit have even fewer privileges than those in disciplinary segregation.
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Prison officials also soundly countered M r. Jordan’s various claims that
while in the administrative maximum facility he received no indication an
investigation was pending for the purpose of keeping him in segregated
confinement. Prison records show he received such notification on M arch 3,
2000, the day before his transfer to the administrative maximum prison, and again
on June 5 and August 25, 2000, when officials denied his request for removal
from administrative detention on his claim the investigation was completed;
instead, prison officials explained a pending investigation was ongoing into his
involvement in the homicide. Documents also show M r. Jordan filed an
administrative appeal requesting release from confinement because the homicide
charges against him were “nullified,” to which prison officials responded in
November 2000 that the matter had been forwarded to the United States
Attorney’s office for review and possible prosecution for homicide. Prison
officials also explained under 28 C.F.R. § 541.22(c)(2) no formal review, as
required under § 541.22(c)(1), is necessary for holdover status inmates in
administrative detention pending an investigation and, instead, designated staff
are only expected to meet weekly with an inmate and to review his case on the
record each week.
II. Procedural Background
In his Bivens action against the Florence prison officials, M r. Jordan raised
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numerous claims concerning his placement in the three different confinement
cells at the Florence facility. M r. Jordan claimed his confinements triggered a
Fifth Amendment liberty interest affording him due process by way of a hearing,
which prison officials denied him, and the conditions in his dry cell constituted
cruel and unusual punishment under the Eighth Amendment. He also raised a
retaliation claim based on his continued detention after he refused to waive his
M iranda rights and confess or identify the murderer, and requested declaratory
and injunctive relief.
After prison officials and M r. Jordan filed various unsuccessful motions to
dismiss and for summary judgment, the district court dismissed M r. Jordan’s dry
cell Eighth Amendment claims based on his admission he failed to exhaust his
administrative remedies. 4 W ith respect to the remaining Fifth Amendment due
process, retaliation, and declaratory and injunctive relief claims, prison officials
filed the instant summary judgment motion seeking qualified immunity, to which
M r. Jordan filed a cross-motion for summary judgment; the pleadings
concentrated on whether a liberty interest w as created triggering certain
procedural due process protections and, if so, whether the law was clearly
established at the time of his confinement for the purpose of placing prison
4
In his counseled brief, Mr. Jordan does not appeal the district court’s dismissal of the
Eighth Amendment claims but concentrates instead on his Fifth Amendment procedural due
process claims dismissed in the instant summary judgment disposition.
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officials on notice of a constitutional violation.
The magistrate judge found M r. Jordan remained in confinement ten days
and accepted as true and uncontested his description of the conditions of the dry
cell. On the other hand, the magistrate judge explicitly considered the prison
officials’ evidence regarding the conditions or restrictions of M r. Jordan’s
placement in the other types of administrative detention from M arch 2000 to June
2004. After briefly considering the Supreme Court's Sandin decision and a
number of Tenth Circuit published and unpublished cases, the magistrate judge
determined neither M r. Jordan’s placement in dry cell confinement nor the other
administrative detentions at issue created a liberty interest because their duration
and restrictions fell within the range of confinement normally expected for one
serving a federal prison sentence as compared with others in the same type of
confinement. As a result, he found no constitutional violation and, therefore, did
not reach the second prong of the qualified immunity defense as to whether the
law was clearly established at the time of M r. Jordan’s confinement. Relying on
our unpublished decision in M oore v. Ham, he also found the prison regulation on
which M r. Jordan primarily relied, 28 C.F.R. § 541.22(c), requiring periodic
reviews and hearings, did not create a liberty interest. See 986 F.2d 1428, 1993
W L 5874, at *1 (10th Cir. Jan. 12, 1993) (unpublished op.). Finally, the
magistrate judge determined M r. Jordan’s retaliation claim lacked merit, given he
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failed to show that “but for” the retaliatory motive, his administrative detention
would not have continued, and he further dismissed the remaining issue of
declaratory and injunctive relief. Based on these determinations, the magistrate
judge recommended granting summary judgment to the prison officials on their
motion for summary judgment and dismissing M r. Jordan’s cross-motion. The
district court accepted the recommendations of the magistrate judge and found in
favor of the prison officials.
Following the district court's resolution of the case, on M ay 19, 2004, a
grand jury indicted M r. Jordan on four counts associated with the June 3, 1999
murder of the other inmate. On June 4, 2004, he was transferred as a holdover
inmate to a federal prison in Englewood, Colorado, for the purpose of producing
him for prosecution during the pendency of his criminal trial. Sometime during
M r. Jordan’s pending criminal investigation or prosecution, he brought a habeas
corpus petition seeking injunctive and declaratory relief directing his release from
administrative detention, which another panel from this court dismissed as moot
based on M r. Jordan’s release from administrative detention following his
indictment. See Jordan v. Hood, 117 Fed. Appx. at 32. On M arch 3, 2005, the
federal district court assigned to M r. Jordan’s murder case granted his motion in
limine to suppress the dying declarations of the murdered inmate. See United
States v. Jordan, 2005 W L 513501, at **1, 6. Nevertheless, based on other
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evidence, on August 9, 2005, a jury convicted M r. Jordan on all four counts
related to the murder of the other inmate. On August 19, 2005, M r. Jordan was
transferred back for housing at the Florence facility as a holdover inmate pending
reclassification, where, as of September 2005, his placement in administrative
detention was reviewed on a weekly basis as required by 28 C.F.R.
§ 541.22(c)(2).
III. Issues Presented On Appeal
The crux of M r. Jordan’s appeal rests primarily on his contention the
district court erred in determining the five-year duration of his administrative
detention alone did not impose an atypical and significant hardship giving rise to
a liberty interest and denial of his procedural due process rights. He also
generally contends the conditions of his special housing unit and administrative
maximum detentions were dissimilar to those of the general population, which, he
suggests, is the applicable baseline in determining whether a liberty interest was
created. Given his contentions a constitutional violation occurred, M r. Jordan
asks us to proceed to the “clearly established” prong of the qualified immunity
defense, but suggests such a defense must fail because the officials in this case
were on fair notice placing an inmate in administrative detention for five years
without affording him due process, including the due process mandated by 28
C.F.R. § 541.22, was a constitutional violation. M r. Jordan further suggests the
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district court erred in dismissing his retaliation claim and continues to request
injunctive and declaratory relief from his continued placement in administrative
detention.
In response, the prison officials suggest they are entitled to qualified
immunity because M r. Jordan has not shown the circumstances of his confinement
or its duration created a liberty interest requiring due process protections,
especially because the length of his detention was “justified” and legitimately
stemmed from the pending murder investigation, security concerns, and past
violent behavior w arranting his segregation from the general prison population.
They suggest the measure of an atypical or significant hardship should be based
on a comparison of inmates in the same administrative detention and not, as M r.
Jordan claims, those in the general population. Nevertheless, they contend that,
with the exception of one less visitor a month and less recreation time than some
in the general population, his confinement was the same as the general
population. 5
5
Prison officials also suggest all of Mr. Jordan’s claims should be dismissed under the
total exhaustion rule announced in Ross v. County of Bernalillo, 365 F.3d 1181, 1188-90 (10th
Cir. 2004), because he failed to exhaust his Eighth Amendment dry cell claim. In his counseled
reply brief, Mr. Jordan counters that the law at the time of his case did not require “total
exhaustion”; the “total exhaustion” requirement was not imposed until five years after he filed
his complaint; prison officials did not raise the “total exhaustion” issue during litigation; and the
Ross decision permits dismissal without prejudice, which would merely lead to Mr. Jordan
refiling the same lawsuit without the Eighth Amendment dry cell claim, resulting in resolution of
the same due process issues before this court on appeal. We note Mr. Jordan incorrectly claims
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IV. Discussion
A. Summary Judgment Standard of Review
W e review de novo the district court’s summary judgment decision,
examining the record and drawing all reasonable inferences in the light most
favorable to the non-moving party, which in this case is M r. Jordan. See
Palladium M usic, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir.
2005). Summary judgment is appropriate if the record shows there is no genuine
issue as to any material fact and the moving party is entitled to a judgment as a
matter of law. Id. (relying on Fed. R. Civ. P. 56(c) and Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986)). In reviewing summary judgment motions, we look at
the parties’ respective burdens. Concerning claims of individual liability,
movants for summary judgment bear the initial burden of demonstrating the
absence of a genuine issue of material fact and entitlement to judgment as a
matter of law. See Adler v. Wal-M art Stores, Inc., 144 F.3d 664, 670-71 (10th
Cir. 1998). If this initial burden is carried, the nonmovant may not rest solely on
his pleadings, but must set out specific facts in support of his claim by reference
to affidavits, deposition transcripts, or other exhibits incorporated therein. Id. at
671.
prison officials did not previously raise this issue during the district court litigation; instead, the
record shows they clearly raised it early in litigation. Nevertheless, we find Mr. Jordan’s other
arguments persuasive, and for the purposes of judicial efficiency, we reject the prison officials’
total exhaustion argument and proceed to the merits of the issues raised in this appeal.
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W e have held a verified complaint stating facts admissible at trial and
based on personal knowledge has the same force and effect as an affidavit for the
purpose of responding to a motion for summary judgment. See Conaway v. Smith,
853 F.2d 789, 792 (10th Cir. 1988). However, while we view the evidence and
draw inferences in the light most favorable to the nonmoving party, that party
must identify sufficient evidence, in its verified complaint or otherwise, which
would require submission of the case to a jury. See Adler, 144 F.3d at 671-72 &
n.1. Even when a verified complaint is based on personal knowledge and sworn,
it may be insufficient to create a triable issue of fact if it is nonspecific or
otherw ise nonresponsive, vague, conclusory, or self-serving. See Lantec, Inc. v.
Novell, Inc., 306 F.3d 1003, 1019 (10th Cir. 2002); Adler, 144 F.3d at 671-72 &
n.1; Conaway, 853 F.2d at 792; Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir.
1991).
W e apply the burdens of the parties differently on claims of qualified
immunity. See Olsen v. Layton Hills M all, 312 F.3d 1304, 1311 (10th Cir. 2002).
W hen a defendant raises the defense of qualified immunity on summary judgment,
the burden shifts to the plaintiff to show 1) the official violated a constitutional or
statutory right; and 2) the constitutional or statutory right was clearly established
when the alleged violation occurred. See id. at 1311-12; Applew hite v. U.S. Air
Force, 995 F.2d 997, 1000 (10th Cir. 1993). In Bivens actions, like here, where
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prison officials have moved for summary judgment seeking qualified immunity
and submitted declarations and evidence denying the allegations in appellant’s
verified complaint, the burden is on the inmate to respond to the particularized
facts developed by those prison officials and to produce evidence tending to prove
every element of his claims, sufficient to require submission of each claim to a
jury. In considering summary judgment determinations, we may affirm the
district court’s grant of summary judgment for any reason supported by the
record. See Baca v. Sklar, 398 F.3d 1210, 1216 (10th Cir. 2005).
B. Absence of M aterial Dispute of Fact
Before beginning any legal analysis, we must decide what, if any, material
facts are in dispute and, therefore, whether summary judgment disposition on the
legal issues presented was appropriate. For the following reasons, we conclude
no dispute of material fact sufficient to overcome a summary judgment
determination exists in this case.
First, because the prison officials’ motion for summary judgment raised the
issue of qualified immunity, M r. Jordan maintained the burden to prove a
constitutional violation occurred. W hile we view the evidence in the light most
favorable to M r. Jordan as the nonmoving party and generally consider his
verified complaint stating personal knowledge of facts as an affidavit, his
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complaint does little to refute the substantial declaratory and documentary
evidence presented by the prison officials contradicting his own self-serving
account of what happened. W hile he provided inmate declarations to rebut the
overwhelming documentary evidence he remained in the dry cell for less than one
day, he has not appealed the conditions of that confinement in his counseled
briefs on appeal, but asks only that the duration of that confinement be included
in the total five-year duration of his administrative detention. Thus, we will
consider the initial ten days of his confinement only as part of his total five-year
administrative detention. See Giano v. Selsky, 238 F.3d 223, 226 (2d Cir. 2001)
(considering total aggregate period of administrative detention, given two periods
of confinement at different facilities were based on the same administrative
rationale).
As to the rest of the evidence submitted by the prison officials, it is clear
M r. Jordan’s verified complaint is insufficient to create a dispute of material fact
as to the conditions and restrictions of his other confinement in administrative
detention when compared with his own admissions and the compelling
documentary and regulatory evidence offered by the prison officials.
Specifically, with respect to the first nine months of his detention in the special
housing unit, prison officials showed M r. Jordan received the same privileges as
the general population, other than access to group recreation, and, as clearly
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show n by prison records, he refused regularly-offered non-group exercise
sessions. As to the loss of certain commissary privileges during his nine-month
stay at the special housing unit, prison officials, through documentary evidence,
established M r. Jordan committed several infractions during that period of time,
for which he received a total of seventy-five days of disciplinary segregation,
which included the loss of property and commissary privileges. M r. Jordan’s
verified complaint does not sufficiently refute these facts.
Next, with respect to his administrative detention in the administrative
maximum facility, M r. Jordan alleged that, unlike him, other inmates under
investigation remained in the general prison population, but he provided no actual
examples of any of the inmates to whom he refers. As to the conditions or
restrictions associated with his confinement in the administrative maximum
facility, M r. Jordan admitted he received many of the privileges afforded other
inmates, and the only specific restrictions alleged involved his lack of access to a
radio or television at different times and reduction of his exercise to two and one-
half hours per week. How ever, he failed to counter the prison officials’
compelling evidence establishing he received an opportunity for five hours of
exercise per week, which he frequently refused, and lost his privileges to radio
and televison as a result of disciplinary sanctions imposed for various rule
infractions, including keeping a razor blade in his cell. M r. Jordan also failed to
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provide evidence to rebut the prison officials' evidence showing he and other
inmates in administrative maximum confinement experienced restrictions and
conditions comparable to those of the general population inmates, with the
exception of one less social call per month and possibly seven hours a week less
recreation time. Similarly, they contradicted his allegation he experienced
restrictions similar to inmates in disciplinary detention or the control unit, to
which M r. Jordan provided no substantive evidence to rebut.
Finally, no dispute of fact exists over the length of time M r. Jordan spent in
administrative detention, which amounted to almost five years, or 1,825 days.
H aving found no genuine issue of material fact exists for a jury determination, w e
conclude summary judgment is an appropriate means of resolving M r. Jordan’s
Bivens action and proceed to determining whether the prison officials, as the
moving parties, are entitled to a judgment as a matter of law with respect to the
liberty interest claimed.
C. Liberty Interest Principles
It is well established that lawfully incarcerated persons retain only a narrow
range of protected liberty interests, Abbott v. M cCotter, 13 F.3d 1439, 1442 (10th
Cir. 1994), and “[t]he Due Process Clause standing alone confers no liberty
interest in freedom from state action taken within the sentence imposed.” Sandin
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v. Conner, 515 U.S. 472, 480 (1995) (quotation marks and citation omitted).
Generally, “the transfer of an inmate to less amenable and more restrictive
quarters for nonpunitive reasons is well within the terms of confinement
ordinarily contemplated by a prison sentence,” and therefore, “administrative
segregation is the sort of confinement ... inmates should reasonably anticipate
receiving at some point in their incarceration” and does not involve an interest
independently protected by the Due Process Clause. Hewitt v Helms, 459 U.S.
460, 468 (1983). However, under the Supreme Court’s decision in Sandin, the
government may create a liberty interest protected by the D ue Process Clause
which is generally limited to freedom from restraint that “imposes atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison
life.” 515 U.S. at 484. In determining whether the government has imposed an
“atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life,” as required by Sandin, we consider the conditions of
confinement, including both its duration and degree of restrictions, as compared
with other inmates. 6 See Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 809 (10th
Cir. 1999). In determining w hether an atypical deprivation occurred, we
6
Another consideration in determining if a liberty interest is created is whether the
detention increased the length or duration of the sentence imposed. See generally Wilson v.
Jones, 430 F.3d 1113, 1120-21 (10th Cir. 2005), petition for cert. filed, (U.S. Jun. 16, 2006) (No.
05-1618); Gaines v. Stenseng, 292 F.3d 1222, 1225 (10th Cir. 2002) (relying on Sandin, 515
U.S. at 487); Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998). However, that issue is not
presented here.
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acknowledge most of our decisions are unpublished, but conclude they lend some
persuasive value on material issues not addressed in a published decision and
assist in the disposition of the issues in this case. See 10th Cir. R. 36.3(B).
W hen considering whether the conditions, duration or restrictions of
confinement are atypical as compared with other inmates, this court has
inconsistently used comparisons either with inmates in the same segregation or
those in the general prison population. See Hill v. Fleming, 2006 W L 856201, at
*4 (10th Cir. Apr. 4, 2006) (unpublished op.) (citations omitted). The Supreme
Court has recognized, without deciding the issue, that the circuit courts are split
on which baseline comparison to use. See Wilkinson v. Austin, 545 U.S. 209, 125
S. Ct. 2384, 2394 (2005). In this circuit, regardless of which baseline we have
utilized, this court “has never held the conditions, duration or restrictions of the
detentions presented on appeal created a liberty interest ....” Hill, 2006 W L
856201, at *4. 7 Similarly, the majority of other circuits have also held no liberty
7
Relying on Thomas v. Gunja, 110 Fed. Appx. 74, 75-76 (10th Cir. Sept. 14, 2004)
(unpublished op.) (ruling transfer to a restrictive unit of another prison did not create atypical
circumstance for purpose of creating a liberty interest); Weatherall v. Scherbarth, 208 F.3d 228,
2000 WL 223576, at **1-2 (10th Cir. Feb. 28, 2000) (unpublished op.) (finding no liberty
interest in reclassification into administrative segregation); Chappell v. McKune, 201 F.3d 447,
1999 WL 1079618, at *1 (10th Cir. Nov. 30, 1999) (unpublished op.), aff'g 1999 WL 381802, at
*2 (D. Kan. May 26, 1999) (affirming district court decision on summary judgment which held
inmate’s lengthy stay of approximately 1000 days in administrative segregation was not atypical
given inmate received all the privileges and incentives commensurate with his same security
level); Villarreal v. Harrison, 201 F.3d 449, 1999 WL 1063830, at *2 & n.1 (10th Cir. Nov. 23,
1999) (unpublished op.) (upholding summary judgment decision explaining two-year duration of
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interest arose in administrative detentions presented on appeal, 8 while a few
others have rendered contrary decisions. 9 Id. at *5. Admittedly, none of these
administrative detention, even with conditions involving restricted telephone privileges and
eating alone in cell, did not establish conditions dramatically different from those in the general
population); Blum v. Fed. Bureau of Prisons, 189 F.3d 477, 1999 WL 638232, at *3 (10th Cir.
Aug. 23, 1999) (unpublished op.) (considering disciplinary detention and concluding ninety-day
confinement without store privileges, radio, and phone calls as enjoyed by other inmates in
segregation did not differ in significant degree and duration to create a protected liberty interest);
Gutierrez v. Shanks, 153 F.3d 727, 1998 WL 380958, at *2 (10th Cir. July 9, 1998) (unpublished
op.) (instructing in a motion to dismiss case that administrative segregation for over one year
was not sufficient to distinguish confinement from that of other inmates for the purpose of
creating a liberty interest); Klein v. Coblentz, 132 F.3d 42, 1997 WL 767538, at *3 (10th Cir.
Nov. 19, 1997) (unpublished op.) (deciding 584-day administrative segregation failed to raise
due process issue for summary judgment purposes); Jones v. Fields, 104 F.3d 367, 1996 WL
731240, at **1-2 (10th Cir. Dec. 20, 1996) (unpublished op.) (holding fifteen-month
administrative segregation did not impose atypical and significant hardship on inmate for
purpose of summary judgment disposition).
8
See, e.g. Jones v. Baker, 155 F.3d at 812-13 (6th Cir.) (upholding administrative
segregation over 900 days was not “atypical” under the Due Process Clause, given confinement
was not much different than experienced by other inmates in segregation); Beverati v. Smith, 120
F.3d 500, 504 (4th Cir. 1997) (determining six-month placement in administrative segregation
was not atypical compared with the general prison population even though officials kept inmates
in their cells except for three to four times each week; denied them outside recreation,
educational, and religious services; warm or large portions of food, and clean clothing and
bedding; and inmates’ cells were infested with vermin, smeared with human feces and urine,
flooded with water, and unbearably hot); Griffin v. Vaughn, 112 F.3d 703, 706-09 (3d Cir. 1997)
(concluding fifteen-month administrative segregation was within the “expected parameters of the
sentence imposed on him,” and that Pennsylvania regulations on such confinement did not
deprive him of a liberty interest or entitlement to procedural due process); Pichardo v. Kinker,
73 F.3d 612, 613 (5th Cir. 1996) (concluding inmate’s contention that Texas prison policies on
administrative segregation created a protectable liberty interest lacked an arguable basis in law
or fact and that “[i]n the wake of Sandin, ... administrative segregation, without more, simply
does not constitute a deprivation of a constitutionally cognizable liberty interest”).
9
See, e.g., Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000) (stating, without analysis,
it was “unaware of any data showing New York frequently removes prisoners from the general
population for as long as ... 305 days); Williams v. Fountain, 77 F.3d 372, 374 n.3 (11th Cir.
1996) (merely assuming that inmate suffered liberty interest deprivation based on disciplinary
sanction of one year solitary confinement).
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cases involved a detention lasting almost five years or 1,825 days. Nonetheless,
we generally rely on their rudimentary principles and discussion to assist in our
analysis of the issues presented in this case.
W e commence with the conditions or restrictions which M r. Jordan
experienced in administrative detention, beginning with his stay in the
administrative maximum facility. As previously mentioned, prison officials
provided substantial evidence inmates segregated in administrative maximum
confinement experience restrictions and conditions comparable to those of general
population inmates, with the exception of one less social call per month and
possibly seven hours less recreation time per week, depending on the different
recreation classes within the general population. Even if we use the general
prison population as a baseline for comparison, these restrictions alone, or when
considered together, do not impose an “atypical and significant hardship ... in
relation to the ordinary incidents of prison life,” as contemplated by Sandin or our
own precedent. Similarly, M r. Jordan has not shown the other nine months he
spent in administrative detention at the special housing unit presented an
“atypical and significant hardship” with respect to either the general population or
those in the same administrative detention. In support of his position, M r. Jordan
points to a case in which the Supreme Court granted certiorari review and
ultimately determined the government created a liberty interest subject to
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procedural due process protections w hen officials placed an inmate indefinitely in
a super-max prison where almost all human contact was prohibited and which
made him ineligible for parole. See Wilkinson, 545 U.S. at ___, 125 S. Ct. at
2393-95. W hile instructive, Wilkinson is not dispositive here, as the conditions of
M r. Jordan’s administrative detention were obviously not as onerous, given 1) he
admittedly had frequent contact with staff; 2) the length of his sentence was not
affected by the administrative detention; and 3) his confinement was not
indefinite but instead limited to the duration of the pending murder investigation.
W e recognize on certain occasions the conditions or restrictions M r. Jordan
experienced did differ from both prison populations, but these differences
stemmed from temporary disciplinary measures resulting from M r. Jordan’s
numerous infractions while in administrative detention. His attempt to mix these
separate disciplinary incidents, which are not part of his Bivens action, into his
arguments about the conditions or restrictions of his administrative confinement is
unavailing. Based on the circumstances presented, we perceive no constitutional
violation occurred with respect to the conditions or restrictions of M r. Jordan’s
administrative confinement, and he has otherwise failed to meet his burden of
establishing the officials violated a constitutional or statutory right for the
purpose of overcoming their defense of qualified immunity.
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W e next turn to the more egregious claim relating to the lengthy five-year
or 1,825-day duration of M r. Jordan’s administrative detention to determine if it
posed an atypical or significant hardship in relation to the ordinary incidents of
prison life. M r. Jordan claims the duration of his confinement alone created a
liberty interest as a matter of law , while the prison officials argue it did not rise to
an atypical hardship based on the pending murder investigation and continuing
security risk he posed to other inmates and staff before and during that
investigation.
Clearly, we do not condone a murder investigation which takes almost five
years, during which time an inmate is subjected to conditions which are atypical
or pose a significant hardship. However, in this case, we have already determined
the conditions or restrictions M r. Jordan encountered did not pose the requisite
Sandin atypical or significant hardship. Even if we considered the five-year
duration of the confinement alone, this court has held certain prison actions which
might impinge on an inmate’s constitutional rights may be valid if they are
reasonably related to legitimate penological interests. See Frazier v. Dubois, 922
F.2d 560, 562 (10th Cir. 1991). Thus, in terms of administrative detention
pending an investigation, we agree with the Sixth Circuit that “[i]t is not
‘atypical’ for a prisoner to be in segregation while his or her participation in
violent conduct inside the prison wall is investigated,” and it may be reasonable
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for prison officials “to make some adjustment in the conditions of ...
imprisonment until a full and thorough investigation is completed.” Jones v.
Baker, 155 F.3d at 812-13 (holding that while the two and one-half-year duration
of administrative confinement was atypical, segregation during investigation was
not atypical and was justified pending investigation of prisoner for his
participation in prison riot where he was implicated in the killing of a prison
guard). See also Skinner v. Cunningham, 430 F.3d 483, 487 (1st Cir. 2005)
(concluding, in part, isolation of inmate in segregation was rational based on fact
the inmate allegedly killed another inmate, and prison officials were waiting on
Attorney General to conduct preliminary inquiry into the murder).
W e have also determined that “[t]he due process rights of prisoners are
subject to reasonable limitation or restriction in light of the legitimate security
concerns of the institution,” and therefore, “‘the transfer of an inmate to less
amenable and more restrictive quarters for nonpunitive reasons is well within the
terms of confinement ordinarily contemplated by a prison sentence.’” Penrod v.
Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996) (citation omitted). 10 In this case,
10
See also Griffin, 112 F.3d at 705, 708 (determining stay of many months in
administrative detention pending investigation into inmate’s alleged rape of female prison guard
fell within prison officials’ security risk considerations and was not uncommon); Jones v. Fields,
1996 WL 731240, at *2 (stating “[a]dministrative segregation due to legitimate concerns about
[the inmate’s] escape history and prison security did not impose an atypical and significant
hardship ... in relation to the ordinary incidents of prison life”); Duarte v. Henman, 986 F.2d
1427, 1992 WL 403128, at *1 (10th Cir. Dec. 29, 1992) (unpublished op.) (holding prisoners
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M r. Jordan’s administrative detention was a result of a justified, ongoing criminal
investigation of which prison officials were aware. They were also cognizant of
M r. Jordan's significant history of violent and disruptive behavior; his heightened
security risk, given he was accused of murder; and his threatening behavior on
numerous occasions w hile in the contested administrative detention, including his
use of a stainless steel shower panel to threaten staff and his possession of a
hidden razor blade in his cell — obviously for means of using it as a weapon.
Thus, while his administrative detention was longer than other instances this court
has considered and arguably atypical in duration, the fact it was commensurate
with ongoing security concerns and a pending investigation, during which time
M r. Jordan did not experience atypical conditions or restrictions, provides
sufficient extenuating circumstances to convince us no liberty interest was
implicated.
D. Application of 28 C.F.R. § 541.22The only question left regarding M r. Jordan’s administrative detention
concerns his argument the regulations in 28 C.F.R. § 541.22 created a liberty
interest triggering procedural due process protections officials denied him.
Section 541.22 provides, in relevant part:
have very limited due process rights when prison officials address prison security issues in case
where inmate was placed in administrative detention pending investigation of his planned escape
attempt).
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(c) Review of Inmates Housed in Administrative Detention.
(1) Except as otherwise provided in paragraphs (c)(2) and (c)(3) of
this section, the Segregation Review Official will review the status of
inmates housed in administrative detention. The SRO shall conduct a
record review within three work days of the inmate’s placement in
administrative detention and shall hold a hearing and formally review
the status of each inmate w ho spends seven continuous days in
administrative detention, and thereafter shall review these cases on
the record (in the inmate’s absence) each week, and shall hold a
hearing and review these cases formally at least every 30 days. The
inmate appears before the SRO at the hearing unless the inmate
waives the right to appear. A waiver may be in writing, signed by
the inmate, or if the inmate refuses to sign a waiver, it shall be
shown by a memorandum signed by staff and witnessed by a second
staff member indicating the inmate’s refusal to appear at the hearing.
Staff shall conduct a psychiatric or psychological assessment
including a personal interview, when administrative detention
continues beyond 30 days. The assessment, submitted to the SRO in
a written report, shall address the inmate’s adjustment to
surroundings and the threat the inmate poses to self, staff and other
inmates. Staff shall conduct a similar psychiatric or psychological
assessment and report at subsequent one-month intervals should
detention continue for this extended period. Administrative
detention is to be used only for short periods of time except where an
inmate needs long-term protection (see § 541.23), or where there are
exceptional circumstances, ordinarily tied to security or complex
investigative concerns. An inmate may be kept in administrative
detention for longer term protection only if the need for such
protection is documented by the SRO. Provided institutional security
is not compromised, the inmate shall receive at each formal review a
written copy of the SRO’s decision and the basis for this finding.
The SRO shall release an inmate from administrative detention when
reasons for placement cease to exist.
(2) The Warden shall designate appropriate staff to meet weekly w ith
an inmate in administrative detention when this placement is a direct
result of the inmates’s holdover status. Staff shall also review this
type of case on the record each week.
(Emphasis added.) Obviously, in viewing § 541.22(c) in its entirety, subsection
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(c)(1) requires a formal procedural process involving periodic hearings and
reviews, while subsection (c)(2), which pertains to inmates in holdover status,
requires only informal reviews. Keeping these distinctions in mind, we consider
the applicable law on whether such provisions establish a liberty interest and
what, if any, procedural due process must be afforded.
Our discussion begins with the law prior to Sandin. In the Supreme Court’s
earlier Hewitt decision, a deprivation analysis of an inmate’s liberty interest
focused on the language of the state or federal prison regulations and whether it
was mandatory, as opposed to the subsequent Sandin requirement that courts look
to the nature of the deprivation experienced by the inmate. See Beverati, 120
F.3d at 503 n.3. It is important to note that under Hewitt and prior to Sandin, “the
analysis of whether a prisoner was deprived of a liberty interest focused not on
the nature of the deprivation experienced by the prisoner, but on the language of
the applicable prison regulations and whether such language w as ‘mandatory.’”
Id. (relying on Sandin, 515 U.S. at 479-81). “The Supreme Court mandate since
Sandin is that henceforth we are to review ... liberty interest claims arising from
prison conditions by asking whether the prison condition complained of presents
‘the type of atypical, significant deprivation in which a State might conceivably
create a liberty ... interest.’” Cosco v. Uphoff, 195 F.3d 1221, 1224 (10th Cir.
1999) (quoting Sandin, 515 U.S. at 486). The Supreme Court in Sandin explained
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the problem in applying the regulation language method, stating “[b]y shifting the
focus of the liberty interest inquiry to one based on the language of a particular
regulation, and not the nature of the deprivation, the C ourt encouraged prisoners
to comb regulations in search of mandatory language on which to base
entitlements to various state-conferred privileges.” 515 U.S. at 481.
Nevertheless, since its decision in Sandin, the Supreme Court has acknowledged
“a liberty interest in avoiding particular conditions of confinement may arise from
state policies or regulations, subject to the important limitations set forth in
Sandin ...,” but explained, “[a]fter Sandin, it is clear that the touchstone of the
inquiry into the existence of a protected, state-created liberty interest in avoiding
restrictive conditions of confinement is not the language of regulations regarding
those conditions but the nature of those conditions themselves.” Wilkinson, 545
U.S. at ___, 125 S. Ct. at 2393-94.
Before further review ing the regulation on which M r. Jordan relies, it is
also important to note that even before Sandin, the Hewitt Court made it clear
administrative segregation of an inmate pending completion of an investigation of
charges against him or for security reasons does not require elaborate procedural
protections, but merely informal, nonadversary evidentiary review, such as notice
of the charges against him and an opportunity to present his views, even if by
written statement. See Hewitt, 459 U.S. at 475-77. Relying on Hewitt, we
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similarly determined “[a]dministrative segregation of an inmate, pending
completion of an investigation of disciplinary charges against him, does not
require elaborate procedural protections,” but requires only the inmate be given
notice of the charges against him, an opportunity to present his story, and the
reasons for the administrative detention. Crispwell v. Gunter, 5 F.3d 545, 1993
W L 372689, at *2 (10th Cir. Sept. 24, 1993) (unpublished op.). Hewitt further
instructed that whether a prisoner remains a security risk will depend on factors
relating to the particular prisoner and the officials’ general knowledge of prison
conditions and tensions, and, similarly, the decision to continue confinement of
an inmate pending an investigation may depend on the progress of the
investigation. 459 U.S. at 477 n.9.
W ith this in mind, we turn specifically to § 541.22. Prior to the Supreme
Court’s decision in Sandin, this court rendered an unpublished decision in M oore
v. H am , in w hich we determined § 541.22 did not grant inmates a liberty interest
in remaining in the general prison population and, alternatively, that the
government did not deny the inmate in question due process under § 541.22,
given the inmate received the required three-day review and was returned to the
general prison population within three days. 1993 W L 5874, at *1. Since entry
of that decision and the Supreme Court’s decision in Sandin, this court has not
directly addressed the liberty and due process interests afforded by 28 C.F.R.
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§ 541.22(c) in a published opinion. Instead, in an unpublished decision, we
declined to consider an inmate’s contentions § 541.22 created a liberty interest or
afforded due process protections and held “a [prison official’s] failure to adhere
to administrative regulations does not equate to a constitutional violation.” See
M alik v. Kindt, 76 F.3d 393, 1996 W L 41828, at *2 (10th Cir. Feb. 2, 1996)
(unpublished op.) (quoting Hovater v. Robinson, 1 F.3d 1063, 1068 n.4 (10th Cir.
1993)). In another unpublished case, this court generally determined “[n]either
the Due Process Clause of the Constitution, nor the federal regulations governing
placement of inmates in administrative detention, provide an inmate w ith a liberty
interest in remaining in the general prison population.” Villarreal, 1999 W L
1063830, at *2. At least one circuit court has agreed with our assessment. In
Crowder v. True, the Seventh Circuit applied the principles in Sandin to conclude
periodic review of administrative detention placement under § 541.22(c) bears
none of the pivotal characteristics of an atypical and significant hardship on
prisoners in relation to the ordinary incidents of prison life and does not
constitute a dramatic departure from the basic conditions or duration of prisoners’
sentences, and therefore, it does not create a constitutionally protected liberty
interest. 11 74 F.3d 812, 815 (7th Cir. 1996).
11
We find unpersuasive the pre-Sandin reasoning by the Second Circuit in Tellier v.
Fields, which focused almost exclusively on the mandatory language of § 541.22(c)(1), rather
than the nature of the deprivation, to determine the inmate’s liberty interest was violated. 280
F.3d 69, 80-83 (2d Cir. 2000). For the same reasons, we find the Eleventh Circuit’s decision in
Magluta v. Samples equally unpersuasive. 375 F.3d 1269, 1280-82 & n.8 (11th Cir. 2004).
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In this case, it is important to note M r. Jordan became a holdover inmate, to
which the formal procedural requirements in 28 C.F.R. § 541.22(c)(1) do not
apply. Instead, the regulations applicable to M r. Jordan as a holdover status
inmate required only an informal weekly review. See 28 C.F.R. § 541.22(c)(2).
Even if the formal review and hearing requirements of § 541.22(c)(1) applied, this
court has consistently held, albeit by unpublished opinion, that § 541.22 creates
no liberty interest under either pre- or post-Sandin principles; furthermore, under
these decisions, officials would not have been on notice of clearly established law
requiring formal procedural review under § 541.22.
Alternatively, even if we apply the minimal procedural requirements
articulated in Hewitt for administrative detentions pending investigation, it is
clear M r. Jordan received the requisite informal, nonadversary evidentiary review
during his criminal investigation. First, M r. Jordan received notice of the charges
against him as well as the reasons for his placement in administrative detention
within the first twenty-four hours. W hile it is not clear whether M r. Jordan
received an immediate opportunity to provide an oral or written statement
contesting his administrative detention, a grievance procedure was immediately
available to him, which he utilized at least seventeen times prior to the murder on
June 3, 1999, including on August 20, 1996, to contest his placement in
administrative detention and on June 19, 1998, to contest his alleged denial of
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visitation privileges while in similar special housing unit holdover status. See 28
C.F.R. §§ 542.10, 542.13, 542.14, and 542.15. Nevertheless, he did not file a
written statement contesting his placement in administrative detention until
February 15, 2000, when he filed his initial grievance, after which he filed at least
eight more grievances on the same grounds, which were subsequently denied.
The record clearly shows the prison officials’ decisions to deny his grievances
and continue his confinement were based, in large part, on the pending
investigation and his security risk to other inmates and staff. Thus, even
assuming a liberty interest was created by placing M r. Jordan in administrative
segregation, he was extended minimum due process when he received notice of
the charges supporting his segregation, had an opportunity to present his story,
and was given reasons for the detention. Under these circumstances, M r. Jordan
has not met his burden of showing a constitutional or statutory right was
established by means of statute, regulation, or under other due process
considerations; nor has he shown prison officials should have been aware of any
clearly established law requiring he receive a more formal means of procedural
due process beyond the informal procedural due process described in Hewitt or
any of the subsequent requirements articulated in Sandin or by this court.
E. Retaliation Claim
Least convincing of all of M r. Jordan’s arguments is his retaliation claim.
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W hile we acknowledge that “prison officials may not retaliate against or harass an
inmate because of the inmate’s exercise of his constitutional rights,” an inmate
must demonstrate the action was taken because of the exercise of his
constitutional rights. Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998)
(quotation marks and citation omitted). Consequently, to prevail on his
retaliation claim, M r. Jordan “must prove that ‘but for’ the retaliatory motive, the
incidents to which he refers ... would not have taken place.” Id. (quotation marks
and citation omitted). In this case, the record clearly establishes his continued
administrative detention was based on his pending criminal investigation and
prosecution for the June 3, 1999 murder of another inmate, as well as justified
security concerns. A s the district court determined, M r. Jordan has not shown
that “but for” his refusal to confess to the crime or implicate another individual,
he would not have remained in administrative detention.
F. Injunctive and Declaratory Relief
Finally, this court previously held as moot M r. Jordan’s request for
injunctive and declaratory relief from administrative detention because of his
indictment and transfer to another prison pending his criminal prosecution for the
murder of the other inmate. See Jordan v. Hood, 117 Fed. Appx. at 32. W e
decline to address this issue a second time on appeal. The fact M r. Jordan is
currently in administrative detention following his trial and conviction does not
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warrant our review , given it is not the same administrative detention pending his
murder investigation which he contested in the Bivens complaint before us.
V. Conclusion
For the reasons articulated herein, we AFFIRM the district court’s grant of
summary judgment to the Appellees. W hile this panel previously granted
Appellees' M otion to Further Supplement the Record, filed September 14, 2005,
we now further GR A N T the follow ing motions:
1) A ppellees’ M otion to Supplement Record, filed July 20, 2004;
2) Appellees’ M otion to Further Supplement Record, filed September 12,
2005; and
3) A ppellant’s Pro Se M otion to Further Supplement the Record on Appeal,
filed October 14, 2005.
Entered by the C ourt:
W ADE BRO RBY
United States Circuit Judge
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